937 F.3d 546
5th Cir.2019Background
- July 26, 2014: appellants (Pervis and Gray) were part of an armed group that attempted to enter a Pasadena, TX credit union; doors were locked. Two days later (July 28) Pervis entered and robbed the credit union at gunpoint while Gray provided surveillance; co-defendants later implicated Gray as the organizer.
- Indictments charged attempted robbery (July 26), robbery (July 28) under 18 U.S.C. § 2113(a), and associated firearm offenses under 18 U.S.C. § 924(c). Trials occurred after competency litigation for Gray.
- Gray’s counsel requested competency evaluation after an earlier psychologist reported IQ≈61 and third-grade reading level; three experts subsequently evaluated Gray and produced divergent findings complicated by strong evidence of malingering.
- District court held an evidentiary competency hearing, credited observational evidence (phone calls, unit behavior) and Dr. Bellah’s assessment over more theory-driven IQ adjustments, and found Gray competent to stand trial.
- Jury convicted Pervis and Gray on robbery and § 924(c) counts; sentencing imposed consecutive § 924(c) terms including a 300-month term as a "second or subsequent" § 924(c) conviction.
- On appeal the court addressed (1) whether § 2113(a) bank robbery is a "crime of violence" under § 924(c)’s elements clause, (2) whether the July 28 § 924(c) count could be treated as "second or subsequent" relative to the July 26 attempt, and (3) whether the district court erred in finding Gray competent to stand trial.
Issues
| Issue | Pervis/Gray Argument | Government/Other Argument | Held |
|---|---|---|---|
| Whether robbery under 18 U.S.C. § 2113(a) is a "crime of violence" under § 924(c)(3)(A) (elements clause) | § 2113(a) may include "intimidation" not amounting to use/threat of force, so it might not categorically be a crime of violence | Precedent (Brewer) holds bank-robbery intimidation is inherently tied to threatened use of force; therefore § 2113(a) satisfies elements clause | Affirmed: § 2113(a) is a crime of violence under § 924(c)(3)(A) |
| Whether the July 28 § 924(c) conviction can be treated as a "second or subsequent" conviction relative to the July 26 attempt when both are adjudicated in the same proceeding | Gray: enhanced § 924(c) sentence cannot be a "second or subsequent" because there was not a prior, final § 924(c) conviction before the July 28 offense | Deal v. United States interprets "conviction" as a prior finding of guilt within the same proceeding; Congress later amended statute but not retroactively | Affirmed: Deal controls; a second § 924(c) conviction may be treated as "second or subsequent" even if adjudicated in same proceeding |
| Whether the court must submit the fact of a "second or subsequent" § 924(c) conviction to the jury (Alleyne/Apprendi concern) | Pervis: Alleyne requires any fact increasing mandatory minimum be found by a jury beyond reasonable doubt | Government: Almendarez-Torres preserves the judicial finding of prior convictions as a sentencing factor distinct from facts increasing statutory maximum | Affirmed: No Alleyne error; Almendarez-Torres permits judge to find prior-conviction sentencing fact |
| Whether the district court clearly erred in finding Gray competent to stand trial given low IQ scores and claimed adaptive deficits | Gray: low IQ (≈61–73 across tests), reports of severe adaptive deficits, and expert opinions raise reasonable doubt about competency | Government/District Court: substantial evidence of malingering, observational evidence (recorded calls, institutional behavior), and two experts’ corrective analyses support competency finding | Affirmed: competency determination not clearly arbitrary or unwarranted; court reasonably credited observational evidence and expert corrective approaches |
Key Cases Cited
- United States v. Brewer, 848 F.3d 711 (5th Cir. 2017) (held § 2113(a) bank robbery qualifies as a "crime of violence" under an elements clause similar to § 924(c))
- Sessions v. Dimaya, 138 S. Ct. 1204 (2018) (struck down a residual clause as unconstitutionally vague)
- United States v. Davis, 139 S. Ct. 2319 (2019) (held § 924(c) residual clause is unconstitutionally vague)
- Deal v. United States, 508 U.S. 129 (1993) (interpreted "conviction" to permit treating a later count as "second or subsequent" within the same proceeding)
- Almendarez-Torres v. United States, 523 U.S. 224 (1998) (prior convictions may be treated as judicially found sentencing factors)
- Apprendi v. New Jersey, 530 U.S. 466 (2000) (facts increasing penalty beyond prescribed statutory maximum must be submitted to a jury, except prior convictions)
- Alleyne v. United States, 570 U.S. 99 (2013) (fact increasing mandatory minimum must be found by a jury; noted Almendarez-Torres exception)
- Hall v. Florida, 572 U.S. 701 (2014) (IQ scores must be treated as ranges and recognizes imprecision in IQ testing)
- Moore v. Texas, 137 S. Ct. 1039 (2017) (cautions about overreliance on correctional behavior and emphasizes proper methods for assessing intellectual disability)
- Cooper v. Oklahoma, 517 U.S. 348 (1996) (criminal trial of an incompetent defendant violates due process)